Tag Archives: blood draws drunk driving

Any OWI or drunk driving charge is serious. Not only can it never be expunged, you potentially face jail, probation, points on your driving record, increases insurance rates, thousands of dollars in fines, costs, and driver’s responsibility fees, as well as negatively impacting scholarships, housing, or your career. If you are charged with an OWI Causing Injury or Death, the consequences are far worse. Not only is it a felony but there is a strong likelihood, if not a guarantee, of prison time. If you are charged with any felony OWI, you need an experienced DUI attorney on your side more than ever.

The Causation Element in OWI Causing Injury and Death Charges

Proving causation is a critical element that the prosecutor has to prove in OWI Causing Injury or OWI Causing Death cases. It is not a “strict liability” crime. A defendant cannot be convicted merely because they were driving drunk and was in an accident where someone happened to get injured or killed. They have to prove your drunk driving was the “cause” of the injury or death. The prosecutor has to prove both factual and proximate cause. Although, proximate cause is the central focus rather than factual cause.

Superseding Causes

The focus is on whether the victim’s injury or death was a direct and natural result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link. A superseding cause is an act of nature, gross negligence by the victim or third party, or intentional misconduct. However, ordinary negligence is not a superseding cause as it is reasonably foreseeable. The trial court must make an initial determination that a question of fact exists regarding the victim’s gross negligence before the evidence is relevant and admissible.

Evidence that the Victim was Intoxicated

Evidence that the victim was intoxicated during an OWI accident is inadmissible by itself. Mere intoxication is not gross negligence. However, extreme intoxication in People v Feezel was held by the Michigan Supreme Court to be highly probative of alleged gross negligence (victim’s BAC was .268 in Feezel). It also negated the defendant’s causation as the victim’s extreme intoxication would have affected the victim’s ability to perceive risks posed by his conduct and eliminate his capacity to react. The threshold determination before a defendant can present this evidence to the jury is whether or not a question of fact exists as to whether the victim engaged in gross negligence or a question of fact as to another superseding cause.

Michigan OWI Defense Attorney

If you have been charged with OWI Causing Injury or OWI Causing Death you need an experienced OWI attorney on your side. There are many variables that go into investigating a felony OWI case. You need an effective advocate to argue against causation to a jury. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI attorney.

Under the general DUI/OWI umbrella are categories of drugged driving. Not only can you be charged for operating a motor vehicle while under the influence of alcohol or driving with an unlawful blood alcohol content, but you can be charged for driving under the influence of controlled substances (cocaine, marijuana…) or prescription medicine. The standards are different in that the prosecutor does not have to prove an arbitrary amount of drugs in your system like the .08 BAC standard for OWI. Instead, the prosecutor only has to prove that you were operating a vehicle with any amount of a controlled substance.

Zero Tolerance: Driving with any Amount of a Controlled Substance

A person may not operator a vehicle on a public roadway if there is any amount of a Schedule I controlled substance under MCL 333.7212 or MCL 333.7214(a)(iv). This includes marijuana. It is a “zero tolerance” policy towards driving with any presence of a controlled substance regardless of whether it impacts your ability to drive. Even if it is a residual from a few days or even weeks prior (marijuana can stay in the system for up to a month) it doesn’t matter.

A licensed medical marijuana patient may drive as long as they are not “under the influence” of marijuana according to the Michigan Medical Marijuana Act (MMMA). The problem is the legislature didn’t clarify what they meant by “under the influence.” For example, Washington defined it in their DUI statute as having 10ng/THC per 100ml/blood. This created an apparent conflict with the OWI statute as it defines “under the influence” of marijuana as having any amount of marijuana in your system. The Michigan Supreme Court stepped into the role of the legislature and declared that the medical marijuana patients could drive as long as it does not substantially interfere with their ability to safely operate a car. That is what the prosecutor has to prove if a medical marijuana patient is charged with OWI or drugged driving.

Other Intoxicating Substances

On March 31, 2013 the statute was amended to include “other intoxicating substances.” That means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either of the following:

Recognized as a drug in any of the following publications or their supplements: official US pharmacopeia, official homeopathy pharmacopeia of US, official national formulary

Substance other than food, taken into a person’s body including but not limited to: vapors or fumes that are used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication

OWPCS is unique in OWI cases as it does not require proof of “under the influence”—a long-standing foundation of drunk driving law.

Penalties for OWPCS

The penalties for OWPCS are the same as the OWI penalties with the exception that the driver responsibility fees are lower. If convicted a defendant faces up to 93 days in jail $500 in fines plus court and police costs, one-year probation, six points on your driving record, 180 days suspended license (first 30 days a “hard suspension”—no driving, with restrictions for the remainder 150 days), and $1,000 in driver responsibility fees ($500/year for two consecutive years).

Michigan Drugged Driving Attorney

If you have been charged with drugged driving or OWPCS, you need the representation of an experienced OWI attorney who will thoroughly evaluate every aspect of the case including the initial police contact, blood draws, and administration of any field sobriety tests. If you have been charged with any DUI offense contact Austin Legal Services, PLC today to speak to a Michigan OWI attorney.

If you have been arrested in Michigan for a DUI, you will be taken into custody where an officer will request you submit to a chemical test of his choosing. It could be breath, blood, or urine. Breath tests are the most common which are done on the DataMaster machine. Blood draws are the next most common. Usually blood draws occur when the driver has been in an accident and the hospital performs one as a part of their standard procedures, the chemical breath machine is not working, hasn’t been calibrated or serviced, or a certified DataMaster operator is unavailable, or the officer suspects the driver of using drugs (because a breath test will only reveal alcohol).

Implied Consent

If you refuse to submit to the officer’s request for a chemical test, you will be in violation of Michigan’s implied consent law and your license will be suspended and six points will be added to your driving record. The police can get a warrant to do a blood draw if you refuse if they present probable cause to a judge. If you submit to the officer’s request, you may have another chemical test performed of your choosing at your expense.

Admissibility of Blood Tests in OWI Cases

In order for blood test results to be admissible in an OWI trial, the prosecution has to prove the following conditions were met:

The blood test was taken in a timely manner

The sample was from a particular person

The blood draw was taken by an authorized physician, medical technologist, or a registered nurse designated by the physician

Sterilized instruments were used

The sample was properly preserved and labeled

Proper methods of transportation were used

Proper methods were used in the blood sample withdrawal

Identity of the supervising person, under whose care the sample was withdrawn, was established

What Happens in an OWI Blood Draw

It is important that you are represented by an OWI attorney that understands the complex process of blood draws in drunk and drugged driving cases. It is important your attorney knows what to look for and file the proper motions to either suppress the blood tests results for improper procedures or call into question the reliability of the results at trial during cross examination.

Scientific Testing Procedures for Blood Draws

A proper test procedure requires use of a control sample, a test sample, and two analyses of the test sample. A test sample is a sample of a substance at a known concentration. For example, a known ethyl alcohol concentration in blood. A control sample contains all of the substances normally found in the substance to be tested, except for the substance of interest, e.g. ethyl alcohol. The purpose of the control sample is to demonstrate that the test instrument will not reveal a result based on substances common in the tested subject, thus giving a false positive. For blood draws, the control sample is blood without alcohol.

It is important to understand that it is not really the driver’s “blood” that is being analyzed. Rather, it is a comparison of known and unknown volatiles. The Michigan State Police (MSP) Forensic Lab receives a sealed kit with the subject’s blood sample contained in two separate 10ml tubes. The kits are supposed to be mailed by the participating officer via first class mail. Once received and documented by an MSP lab technician, it is placed into a temperature-controlled storage room. It is presumed the tubes contain a known amount of preservative and anti-coagulant (100 mg of sodium fluoride and 20mg of potassium oxalate) in order to preserve the integrity of the sample. One tube will be tested by the MSP and the other tube is available for testing by the defendant if he chooses to. Even at this stage the lab does not have your blood, but a mixture.

Methods of Testing Blood Samples

There are three generally used methods of blood testing.

Dichromate Procedure—This is not a specific test for ethyl alcohol. It may show a reaction to acetone, acetaldehyde, wood, or rubbing alcohol. Wood and rubbing alcohol are not usually found in the bloodstream but are found in laboratories.

Enzymatic Procedure—This procedure uses the same enzyme found normally in the body.

Gas Chromatography—This procedure is specific for ethyl alcohol and uses separate volatile substances. Other substances during the test are not registered and is specific only for ethyl alcohol. This is the most commonly used and the most scientifically reliable. It is the method used by the MSP labs.

Whole Blood Versus Serum

The blood alcohol results can be from testing serum, plasma, or whole blood. It is important your OWI lawyer understand the difference. The administrative rules governing blood tests require that serum or plasma alcohol concentrations be translated into an equivalent whole blood alcohol concentration. The MSP forensic labs test whole blood using gas chromatography.

Hospitals use an enzymatic method when analyzing blood alcohol. It tests serum, not whole blood that contains cellular material and clotting proteins. The results using serum may not correlate to the results using whole blood because serum contains approximately 1.6 times more alcohol than whole blood. Some scientific studies and journals have concluded that the blood alcohol concentration in serum can be as 10-30 times higher than whole blood. Thus, serum can yield a much higher blood alcohol content (BAC). While there is no Michigan appellate decisions directly on point, the trend in other states is to preclude using serum or plasma results as evidence unless a conversion method is used demonstrating the blood alcohol equivalent in whole blood.

Are Blood Draws Reliable in DUI Cases?

Of the three chemical tests (breath, blood, and urine), blood tests are the most reliable. No one disputes that. However, there is a whole lot more that can go wrong with blood tests than any of the other chemical tests. It is important that you have an OWI attorney that is familiar with the testing procedures and forensic science to properly evaluate your case. An experienced and trained eye will know what to look for. There may be chain of custody issues where numerous people are checking out the test tubes or there are periods of time that the whereabouts of the test tube cannot be accounted for. This is especially important if they cannot prove that the test tubes were in a certain temperature controlled environment as required by the administrative rules. This can lead to a suppression of the evidence or can be used to cast serious doubt in the jury’s minds as to the reliability and accuracy of the test results.

Michigan OWI Attorney

If you have been charged with an OWI offense, it is important that you are represented by someone that devotes a substantial part of their practice to drunk and drugged driving defense. It is too complex and the consequences too serious to go with a lawyer who merely “dabbles” in DUI defense. Contact Austin Legal Services, PLC today at (517) 614-1983 for a free consultation with our Michigan OWI attorney.